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| Share Name | Share Symbol | Market | Type | Share ISIN | Share Description |
|---|---|---|---|---|---|
| Amara Ming | LSE:AMA | London | Ordinary Share | GB00B04M1L91 | ORD 1P |
| Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
|---|---|---|---|---|---|---|---|---|---|---|
| 0.00 | 0.00% | 17.25 | 0.00 | 01:00:00 |
| Industry Sector | Turnover | Profit | EPS - Basic | PE Ratio | Market Cap |
|---|---|---|---|---|---|
| 0 | 0 | N/A | 0 |
From May 2019 to May 2024
TIDMAMA
RNS Number : 6711C
Amara Mining PLC
20 January 2015
NOT FOR DISTRIBUTION TO U.S. NEWSWIRE SERVICES OR FOR PUBLICATION, RELEASE OR DISSEMINATION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN THE UNITED STATES, CANADA, AUSTRALIA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH IT WOULD BE UNLAWFUL TO DO SO. ANY FAILURE TO COMPLY WITH THIS RESTRICTION MAY CONSTITUTE A VIOLATION OF THE SECURITIES LAWS OF SUCH JURISDICTIONS.
20 January 2015 AIM:AMA
Amara Mining plc
("Amara" or the "Company")
PROPOSED PLACING TO RAISE APPROXIMATELY GBP13.2 MILLION (US$20 MILLION)
Amara, the AIM listed West African focused gold mining company, is pleased to announce its intention to conduct a placing to raise gross proceeds of approximately GBP13.2 million (approximately US$20 million) through the issue of new ordinary shares ("Ordinary Shares") (the "Placing"). The completion of the Placing is conditional upon inter alia the approval of shareholders in a general meeting of the Company (the "General Meeting") and admission of the Ordinary Shares placed pursuant to the Placing (the "Placing Shares") to trading on AIM ("Admission").
The price per Ordinary Share at which the Placing Shares are to be placed (the "Placing Price") will be determined at the close of the Bookbuild (as defined below). The precise total number of shares issued in the Placing will be finally determined such that the proceeds arising from the Placing amount to approximately US$20 million (before expenses). The Placing will be to institutional investors. The Placing is being conducted through an accelerated bookbuilding process to be undertaken by Peel Hunt LLP ("Peel Hunt") and GMP Securities Europe LLP ("GMP").
The Placing
The Placing is subject to the terms and conditions set out in Appendix II. Peel Hunt and GMP will today commence an accelerated bookbuilding process in respect of the Placing ("Bookbuild"). The book will open with immediate effect. The timing of the closing of the book, pricing and allocations is at the discretion of Peel Hunt, GMP and the Company. Details of the Placing Price will be announced as soon as practicable after the close of the Bookbuild.
The Placing Shares will be credited as fully paid and will rank pari passu in all respects with the Existing Ordinary Shares including the right to receive all dividends and other distributions declared, made or paid after their date of issue.
The Company has entered into a placing agreement (the "Placing Agreement") with Peel Hunt and GMP (together the "Joint Bookrunners") on customary terms and conditions pursuant to which the Joint Bookrunners will use their reasonable endeavours to procure Placees for the Placing Shares.
Investors who participate in the Placing will receive an allocation of Placing Shares at the discretion of Peel Hunt, GMP and the Company. Placees should refer to their trade confirmation.
The Placing is conditional, inter alia, on the approval of shareholders at the General Meeting of the Company to be held on or around 6 February 2015 and upon admission of the Placing Shares to trading on AIM. The Placing is not underwritten.
A circular convening the General Meeting and setting out further details of the Placing (the "Circular") is expected to be sent to shareholders shortly after the Announcement of the results of the Placing.
The Company will apply for admission of the Placing Shares, the issue of which is subject to shareholder approval, to trading on AIM ("Admission"). Subject to the approval of shareholders at the General Meeting and the Placing Agreement not having been terminated in accordance with its terms, it is expected Admission will occur on or around 10 February 2015 (the "Closing Date").
The Directors intend to vote in favour of the each of the Resolutions in respect of their aggregate beneficial interest in respect of 2,735,009 Ordinary Shares representing approximately 0.84 per cent. of the Existing Ordinary Shares. Existing institutional shareholders who participate in the Placing will irrevocably commit to vote in favour of each of the Resolutions in respect of their entire existing shareholdings.
Your attention is drawn to the detailed terms and conditions of the Placing described in Appendix II to this Announcement (which forms part of this Announcement) which sets out further information relating to the Bookbuild and the terms and conditions of the Placing.
Use of Proceeds
The proposed Placing is expected to raise gross proceeds of approximately GBP13.2 million (approximately US$20 million).
The net proceeds of the proposed Placing will be sufficient to meet the Group's needs to the point of making a construction decision for its Yaoure Gold Project in Côte d'Ivoire ("Yaoure"). The expected application of funds raised in the proposed Placing, after expenses, is summarised as follows:
Hot Features
Premium
US$m
Yaoure
Bankable Feasibility Study ("BFS") 2.4
Resource definition and exploration 6.1
Base costs to March 2016 3.4
-----
Total Yaoure 11.9
Baomahun Gold Project ("Baomahun")
Base costs to March 2016 2.0
-----
Total Baomahun 2.0
Working capital / G&A expenses to March
2016 5.1
-----
TOTAL 19.0
The estimated costs at Yaoure include all costs associated with completion of the BFS in 2015 together with an allowance for further resource definition and exploration drilling. This is intended to further increase confidence in the Yaoure Mineral Resource, adding further Measured and Indicated Resources to the economic pit-shells and allow the regional opportunities for further mineralisation to be followed-up. This envisages that a drill spacing of not more than 50m will be required to yield Indicated Resources and a drill spacing of not more than 25m will be required to yield Measured Resources.
The base costs listed above for both projects include the fees to the governments of Côte d'Ivoire (for Yaoure) and Sierra Leone (for Baomahun) to maintain the licence areas, salaries for local and expatriate employees, funds used for corporate social responsibility purposes such as community initiatives, and 'standstill' costs, including the cost of running the Amara offices, vehicles and other buildings in each host country.
Working capital includes all costs associated with the head office. An allowance to expand the Amara operating team will be considered from discretionary expenditure as the Company advances the project to BFS and ultimately a construction decision expected in early 2016.
Background to and Reasons for the Placing
The net proceeds of the proposed Placing will be used primarily to continue to advance Yaoure to a construction decision, including the delivery of the BFS in Q4 2015.
The Company delivered a Preliminary Economic Assessment on 12 March 2014, which confirmed the project's compelling economics and indicated that Yaoure should be taken to the next level of engineering study and economic assessment. At a gold price of US$1,250 per ounce and a discount rate of 8%, the 6.5 million tonne per annum base case scenario for Yaoure delivers a post-tax Internal Rate of Return ("IRR") of 33% and a post-tax Net Present Value ("NPV") of US$613 million. Its average projected production rate is 279,000 ounces per annum over a 10 year life, with a total cash cost of US$594 per ounce (including royalties) and all-in sustaining costs of US$711 per ounce.
Between April and October 2014, Amara conducted an extensive drilling programme at Yaoure, comprising 251 diamond drill ("DD") holes and 80 reverse circulation ("RC") holes with the objective of upgrading a significant portion of Yaoure's 6.3 million ounce Mineral Resources (previously 20.3Mt at 1.20g/t for 0.8 million ounces Indicated and 133.0Mt at 1.29g/t for 5.5 million ounces Inferred) to the Indicated category. Amara completed two Mineral Resource updates for the project with the second delivered on 6 January 2015, comprising 4.4 million ounces Indicated (106.3Mt at 1.29g/t) and 2.4 million ounces Inferred (63.0Mt at 1.19g/t), an increase in Indicated resources of more than 450% compared to the December 2013 update. The total resource increased by 485,000 ounces to 6.8 million ounces.
The Company's cash balance as at 31 December 2014 was US$2 million and Amara is fully-funded to deliver a Pre-Feasibility Study ("PFS") for Yaoure in March 2015. The net proceeds of the proposed Placing will enable the Company to deliver a BFS in Q4 2015 and undertake negotiations with the Côte d'Ivoire government for an exploitation licence and mining convention for Yaoure to allow financing and development. Further resource definition drilling will be conducted to improve confidence in the Yaoure deposit, which is expected to deliver additional Measured and Indicated Resources into the economic pit-shells and ensure the mine plan for the early years of production is properly understood. Additional exploration work will also be undertaken focused on extensions to the existing resource base as well as the regional opportunities for additional mineralisation that have been identified.
The balance of the net proceeds of the proposed Placing will be used for general working capital purposes.
Other Operations
The Baomahun Gold Project in Sierra Leone is currently on care and maintenance due to the Ebola outbreak. Once the situation has improved significantly, Amara intends to deploy an exploration team to Sierra Leone to review the project geology and re-assess the ore-body with a view to optimising the existing Feasibility Study. Using in-house personnel, Amara intends to review the opportunity for a longer term open pit and underground mine with a lower upfront capital cost. The costs of this review will be borne from the footprint costs of the Group and the allowance for the expansion of the team included within the use of proceeds for the Placing.
As announced as part of the H1 2014 results on 28 August 2014, operations of the local subsidiaries in Burkina Faso were effectively closed and a decision was taken to sell the remaining assets. Following the receipt of a default notice from BCM Burkina SARL ("BCM"), which was the mining contractor at Kalsaka/Sega, Seguénéga Mining SA ("SMSA"), the company which controls the Sega mine, was placed into court-supervised liquidation and is now being closed under the control of the liquidator. In addition, Kalsaka Mining SA ("KMSA"), the company which controls the Kalsaka operating facilities including the processing plant, has, following a number of creditors commencing proceedings, been placed into creditor protection under OHADA law pending recovery of amounts due to KMSA from SMSA under the existing ore processing contract, and could ultimately be placed into liquidation. OHADA law is the "Organisation pour l'Harmonisation en Afrique du Droit des Affaires", which translates as "Organisation for the Harmonisation of Business Law in Africa".
As a result of the liquidation and creditor protection processes it is now unlikely that all creditors of SMSA will receive full payment of amounts due to it. With US$25.2m of intercompany debt, Amara is the largest creditor of KMSA, which in turn is the largest creditor of SMSA. Amara is unlikely to receive full payment of amounts due from KMSA but is not relying on the recovery of any amounts from Burkina Faso for its financing strategy.
Legal proceedings have been brought in Burkina Faso by BCM alleging that KMSA, SMSA and Amara are jointly and severally liable for the debts of SMSA and KMSA to BCM of approximately GBP11.6 million, together with approximately GBP4.3 million of damages and court fees. On the basis of these claims, BCM implemented conservatory seizures of the local subsidiaries' assets in Burkina Faso. The seizures of the assets of SMSA and KMSA have subsequently been suspended due to the respective liquidation and creditor protection processes. In Côte d'Ivoire conservatory seizures were implemented by BCM against cash and debts owed to Amara, and tangible moveable assets of Amara Côte d'Ivoire SARL. These are protective measures to prevent disposal of certain assets pending the outcome of court proceedings, although the Group remains in control of its assets during the seizure process and is not prevented from fulfilling its work requirements in Côte d'Ivoire during this period.
Amara has no contractual responsibility for the debts of SMSA or KMSA. Given the current legal advice, the Directors of Amara believe that the claims by BCM against Amara are highly unlikely to succeed or have any recourse to Amara, although legal costs are being incurred by Amara in defence of these actions.
In 2014 Amara disposed of its assets in Liberia for nominal consideration.
For more information please contact:
Amara Mining plc
John McGloin, Chairman and Chief Executive
Officer
Pete Gardner, Finance Director
Katharine Sutton, Head of Investor +44 (0)20 7398
Relations 1420
Peel Hunt LLP
(Nominated Adviser & Joint Broker)
Matthew Armitt +44 (0)20 7418
Ross Allister 8900
GMP Securities Europe LLP
(Joint Broker)
Richard Greenfield +44 (0)20 7647
Alex Carse 2800
Farm Street Communications
(Media Relations) +44 (0)7593
Simon Robinson 340 107
This Announcement includes certain "forward-looking information". All statements other than statements of historical fact included in this Announcement, including, without limitation, the positioning of the Company for future success, statements regarding exploration, drilling results, resource calculations and potential future production at Yaoure, and future capital plans and objectives of Amara, are forward-looking information that involve various risks and uncertainties. There can be no assurance that such statements will prove to be accurate and actual results and future events could differ materially from those anticipated in such statements. Important factors that could cause actual results to differ materially from Amara's expectations include, among others, the risks related to international operations, the actual results of current exploration and drilling activities, changes in project parameters as plans continue to be refined, the timing of the PFS and BFS, as well as the future price of gold. Although Amara has attempted to identify important factors that could cause actual results to differ materially, there may be other factors that cause results not to be as anticipated, estimated or intended. There can be no assurance that such statements will prove to be accurate as actual results and future events could differ materially from those anticipated in such statements. Accordingly, readers should not place undue reliance on forward-looking statements. Amara does not undertake to update any forward-looking statements that are included herein, except in accordance with applicable securities laws.
Non IFRS Measures - cash cost per ounce is a financial measure used by many investors to compare mining companies on the basis of operating results and asset value. It is not a measure of financial performance, nor does it have a standardized meaning prescribed by IFRS, and it may not be comparable to similar measures presented by other companies. Investors are cautioned that cash cost per ounce should not be construed as an alternative to other financial measures determined in accordance with IFRS as an indicator of Amara's performance. This measure has been described and presented in this Announcement in order to provide shareholders and potential investors with additional information regarding the Company's operational performance.
Notes:
Appendix II to this Announcement (which forms part of this Announcement) sets out certain terms and conditions applicable to the Placing and further information regarding the Bookbuild.
No representation or warranty, express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by either of the Joint Bookrunners or by any of their respective affiliates or agents or brokers, as to or in relation to, the accuracy or completeness of this Announcement or any other written or oral information made available to or publicly available to any interested party or its advisers, and any liability therefore is expressly disclaimed.
Peel Hunt is acting for Amara and for no-one else in connection with the Bookbuild and the Placing, and will not be responsible to anyone other than Amara for providing the protections afforded to customers of Peel Hunt nor for providing advice to any other person in relation to the Placing or any other matter referred to herein. Peel Hunt is authorised and regulated in the United Kingdom by the Financial Conduct Authority ("FCA").
GMP is acting for Amara and for no-one else in connection with the Bookbuild and the Placing, and will not be responsible to anyone other than Amara for providing the protections afforded to customers of GMP nor for providing advice to any other person in relation to the Placing or any other matter referred to herein. GMP is authorised and regulated in the United Kingdom by the FCA.
Persons receiving this Announcement should note that neither Peel Hunt nor GMP will be responsible to anyone other than the Company for providing the protections afforded to clients of Peel Hunt or GMP or for advising any other person on the arrangements described in this Announcement. Neither Peel Hunt nor GMP have authorised the contents of, or any part of, this Announcement and no liability whatsoever is accepted by either of them nor do they make any representation or warranty, express or implied, for the accuracy of any information or opinion contained in this Announcement or for the omission of any information. Each of Peel Hunt and GMP disclaim all and any responsibility or liability whether arising in tort, contract or otherwise which it might otherwise have in respect of this announcement.
The distribution of this Announcement and the Placing in certain jurisdictions may be restricted by law. No action has been taken by Amara, Peel Hunt or GMP that would permit the Placing or possession or distribution of this Announcement or any other offering or publicity material relating to the Placing in any jurisdiction where action for that purpose is required. Persons into whose possession this Announcement becomes available are required by Amara, Peel Hunt and GMP to inform themselves about, and to observe, such restrictions.
The price of Ordinary Shares and the income from them may go down as well as up and investors may not get back the full amount invested on disposal of Ordinary Shares.
The information in this Announcement shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of, the securities referred to herein in any jurisdiction in which such offer, solicitation or sale would require preparation of further prospectuses or other offer documentation, or be unlawful prior to registration, exemption from registration or qualification under the securities laws of any such jurisdiction.
This Announcement does not contain an offer or constitute any part of an offer to the public within the meaning of Sections 85 and 102B of the Financial Services and Markets Act 2000, as amended ("FSMA") or otherwise. This Announcement is not an "approved prospectus" within the meaning of Section 85(7) of FSMA and a copy of it has not been, and will not be, delivered to the FCA in accordance with the Prospectus Rules or delivered to any other authority which could be a competent authority for the purpose of the Prospectus Directive. Its contents have not been examined or approved by the London Stock Exchange plc, nor has it been approved by an "authorised person" for the purposes of Section 21 of FSMA.
The Placing pursuant to this Announcement is only being, and may only be, made to and is directed at:
(a) persons in the United Kingdom who are both (i) a "Qualified Investor" within the meaning of Section 86(7) of FSMA acting as principal or in circumstances where Section 86(2) FSMA applies and (ii) within the categories of persons referred to in Article 19(5) (Investment professionals) or Article 49(2)(a) to (d) (High net worth companies, unincorporated associations, etc.) of the Financial Services and Markets Act 2000 (Financial Promotions) Order 2005, or persons in the United Kingdom to whom the Placing may otherwise be made or to whom the Placing may otherwise be directed in the United Kingdom without an approved prospectus having been made available to the public in the United Kingdom before the Placing is made, and without making an unlawful financial promotion;
(b) persons inside the United States who are "qualified institutional buyers" ("QIBs", as defined in Rule 144A under the U.S. Securities Act of 1933, as amended (the "U.S. Securities Act")) or "accredited investors" ("Accredited Investors", as defined in Rule 501 of Regulation D under the U.S. Securities Act);
(c) persons subject to the laws of a member state of the European Economic Area (other than, for the avoidance of doubt, the UK), who are (i) "qualified investors" (as defined in Article 2(1)(e) of the Prospectus Directive 2003/71 EC) acting as a principal for their own account to whom the Placing or an invitation to subscribe for Placing Shares in the manner contemplated by this announcement and any communication or correspondence in connection therewith is permitted by the laws of that member state or (ii) if they are not in any such member state but are acting for the account of such person then (i) applies in respect of each such purchaser;
(d) persons in or otherwise subject to the laws of Switzerland to whom the Placing or an invitation to subscribe for Placing Shares in the manner contemplated by this Announcement and any communication or correspondence therewith is permitted by the laws of Switzerland and will not result in an 'public offer' under Swiss law;
(e) persons in Australia who are able to receive an offer for securities without disclosure under Part 6D.2 of the Australian Corporations Act 2001 (Cth) ("Corporations Act") including, without limitation, as a "sophisticated investor" as defined in section 708(8) of the Corporations Act or a "professional investor" as defined in section 708(11) of the Corporations Act and are not acquiring the Placing Shares with the purpose of selling or transferring them or granting, issuing, or transferring interests in, or options over, Placing the Shares;
(f) persons in Canada who are "accredited investors" as defined in the Canadian National Instrument 45-106 Prospectus and Registration Exemptions; and
(g) persons outside the United States, the United Kingdom, Switzerland or other member states of the European Economic Area to whom the Placing or an invitation to subscribe for the Shares in the manner contemplated by this Announcement and any communication or correspondence therewith is permitted by the laws of the jurisdiction in which it is situated or from where the Placee submitted its bid to subscribe for Placing Shares and it is a person to whom the Placing Shares can lawfully be offered and issued under all applicable laws, without the need for any approval, registration, filing or lodgement of any kind, including a prospectus or other disclosure document;
all such persons together being referred to as "Relevant Persons".
The securities being offered in the Placing pursuant to this Announcement are only available to, and any invitation, offering or agreement to subscribe, purchase or otherwise acquire such securities will be engaged in only with, Relevant Persons. Any person who is not a Relevant Person should not act or rely on this Announcement or any of its contents.
The Placing Shares under the Placing may not (unless an exemption from the requirement to file a prospectus, registration, statement or equivalent document under the relevant securities laws is applicable) be offered, sold, resold or delivered, directly or indirectly, in or into the United States, Canada, Australia, Japan, the Republic of South Africa or any other jurisdiction.
The Placing Shares have not been and will not be registered under the U.S. Securities Act, or any state securities laws, and may not be offered, sold or delivered within the United States except in transactions exempt from the registration requirements of the U.S. Securities Act and applicable state securities laws. The Joint Bookrunners have agreed that, except as permitted by the Placing Agreement and as expressly permitted by applicable laws of the United States, they will not offer or sell the Placing Shares within the United States. The Placing Agreement permits the Joint Bookrunners, through certain of their U.S. broker-dealer affiliates, to offer the Placing Shares in the United States to QIBS or Accredited Investors that will purchase Placing Shares from the Company pursuant to Rule 506 of Regulation D under the U.S. Securities Act. This Announcement does not constitute an offering to sell, or a solicitation of an offering to buy, any Placing Shares in the United States. Moreover, the Placing Agreement provides that the Joint Bookrunners will offer and sell the Placing Shares outside the United States only in accordance with Regulation S under the U.S. Securities Act. Until 40 days after the commencement of the Placing, an offer or sale of the Placing Shares within the United States by a dealer (whether or not participating in the Placing) may violate the registration requirements of the U.S. Securities Act unless such Placing or sale is made pursuant to an exemption from registration under the U.S. Securities Act.
Persons (including individuals, funds or otherwise) by whom or on whose behalf a commitment to acquire Placing Shares under the Placing is given (the "Placees") will be deemed to have read and understood this Announcement, including the Appendices, in its entirety and to be participating in such Placing, unless otherwise agreed or required by the Joint Bookrunners, on the terms and conditions, and to be providing the representations, warranties, acknowledgements, and undertakings contained in Appendix II and in particular will be deemed to represent, warrant and acknowledge that it is: (i) a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it under the Placing for the purposes of its business; and (ii) outside the United States and is subscribing for the Placing Shares under the Placing in an "offshore transaction" (within the meaning of Regulation S under the U.S. Securities Act).
This Announcement, including the Appendices, is not for distribution directly or indirectly in or into the United States (including its territories and possessions, any State of the United States and the District of Columbia) or any jurisdiction into which the same would be unlawful. No public offering of securities of Amara will be made in connection with the Placing in the United Kingdom, the United States, the EEA, Switzerland or elsewhere.
The information in this Announcement may not be forwarded or distributed to any other person and may not be reproduced in any manner whatsoever. Any forwarding, distribution, reproduction, or disclosure of this information in whole or in part is unauthorised. Failure to comply with this directive may result in a violation of the US Securities Act or the applicable laws of other jurisdictions.
Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of the Appendices or this Announcement should seek appropriate advice before taking any action.
The Placing Shares to be issued pursuant to the Placing will not be admitted to trading on any stock exchange other than AIM. Neither the content of Amara's website nor any website accessible by hyperlinks on Amara's website is incorporated in, or forms part of, this Announcement.
APPENDIX I
DEFINITIONS
The following definitions apply throughout this announcement, unless the context requires otherwise:
"Admission" the admission to trading on AIM
of the Placing Shares, which is
expected to take place on or around
10 February 2015
"AIM" the market of that name operated
by the London Stock Exchange
"Articles" the existing articles of association
of the Company as at the date
of this announcement
"Board" or "Directors" the directors of the Company from
time to time
"Bookbuild" the bookbuilding process to be
conducted by the Joint Bookrunners
to arrange participation by Placees
in the Placing which will establish
the number of Placing Shares at
the Placing Price
"Joint Bookrunners" Peel Hunt and GMP and "Joint Bookrunner"
shall mean either of them
"Circular" the circular convening the General
Meeting
"Company" or Amara Mining plc
"Amara"
"CREST" the relevant system for the paperless
settlement of trades and the holding
of uncertificated securities operated
by Euroclear UK & Ireland in accordance
with the CREST Regulations
"CREST member" a person who has been admitted
by Euroclear UK & Ireland as a
system-member (as defined in the
CREST Regulations)
"CREST participant" a person who is, in relation to
CREST, a system participant (as
defined in the CREST Regulations)
"CREST Regulations" the Uncertificated Securities
Regulations 2001, as amended
"Enlarged Share the issued ordinary share capital
Capital" of the Company immediately following
Admission
"Euroclear UK Euroclear UK & Ireland Limited,
& Ireland" the operator of CREST
"Existing Ordinary the existing Ordinary Shares
Shares"
"FCA" the Financial Conduct Authority
of the United Kingdom
"Form of Proxy" the form of proxy which will accompany
the Circular
"FSMA" the Financial Services and Markets
Act 2000 (as amended)
"General Meeting" the general meeting of Shareholders
to be held at a venue to be confirmed
within the Circular at 11.00 a.m.
GMT on or around 6 February 2015
"GMP" GMP Securities Europe LLP
"Group" the Company, together with its
subsidiary undertakings
"ISIN" International Securities Identification
Number
"London Stock London Stock Exchange plc
Exchange"
"Money Laundering the Money Laundering Regulations
Regulations" 2007 (as amended)
"Ordinary Shares" the ordinary shares of GBP0.01
each in the capital of the Company
"Peel Hunt" Peel Hunt LLP
"Placees" the persons by whom or on whose
behalf a commitment to acquire
Placing Shares will be or has
been given
"Placing" the placing of the Placing Shares
at the Placing Price by Peel Hunt
and GMP on the terms and subject
to the conditions set out in this
Placing Announcement and the Placing
Agreement
"Placing Agreement" the conditional agreement dated
20 January 2015 between the Company,
Peel Hunt and GMP relating to
the Placing
"Placing Price" the price per Ordinary Share at
which the Placing Share are placed,
such price to be determined as
part of the Bookbuild
"Placing Shares" the Placing Shares placed with
institutional and other investors
by Peel Hunt and GMP and which
are to be issued by the Company
pursuant to the Placing
"Prospectus Rules" the rules made by the FCA under
Part VI of FSMA in relation to
offers of transferable securities
to the public and admission of
transferable securities to trading
on a regulated market
"Registrars" Capita Asset Services, Corporate
Actions, The Registry, 34 Beckenham
Road, Kent, BR3 4TU, UK
"Regulatory Information one of the regulatory information
Service" services approved by the London
Stock Exchange for the distribution
to the public of AIM announcements
"Resolutions" the resolutions to be proposed
at the General Meeting, the full
text of which will be set out
in the Notice of General Meeting
at the end of the Circular
"Shareholder" a holder of Ordinary Shares
"sterling", "pounds the lawful currency of the United
sterling", "GBP", Kingdom
"pence" or "p"
"US$" or "US the lawful currency of the United
dollar" States of America
"US Securities the United States Securities Act
Act" of 1933 (as amended)
APPENDIX II
TERMS AND CONDITIONS - IMPORTANT INFORMATION REGARDING THE PLACING
FOR INVITED PLACEES ONLY, CAPITALISED TERMS USED IN THIS APPENDIX ARE DEFINED IN THE ANNOUNCEMENT
THIS ANNOUNCEMENT, INCLUDING THIS APPENDIX II AND THE INFORMATION IN IT, IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA, JAPAN OR THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
EACH PURCHASER SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF AN INVESTMENT IN SHARES IN THE COMPANY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT PERSONS SELECTED BY THE JOINT BOOKRUNNERS WHO ARE: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE PROSPECTUS DIRECTIVE (DIRECTIVE 2003/71/EC) ("QUALIFIED INVESTORS"); (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO: (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS AND ARE "INVESTMENT PROFESSIONALS" FALLING WITHIN ARTICLE 19(5) OF THE UNITED KINGDOM FINANCIAL SERVICES AND MARKETS ACT, 2000 (FINANCIAL PROMOTION) ORDER 2005 (AS AMENDED) (THE "ORDER"); OR (II) ARE PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; OR (C) PERSONS INSIDE THE UNITED STATES WHO ARE "QUALIFIED INSTITUTIONAL BUYERS" ("QIBS", AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES ACT")) OR "ACCREDITED INVESTORS" ("ACCREDITED INVESTORS", AS DEFINED IN RULE 501 OF REGULATION D UNDER THE U.S. SECURITIES ACT); (D) PERSONS SUBJECT TO THE LAWS OF A MEMBER STATE OF THE EUROPEAN ECONOMIC AREA (OTHER THAN, FOR THE AVOIDANCE OF DOUBT, THE UK), WHO ARE (I) "QUALIFIED INVESTORS" (AS DEFINED IN ARTICLE 2(1)(E) OF THE PROSPECTUS DIRECTIVE 2003/71 EC) ACTING AS A PRINCIPAL FOR THEIR OWN ACCOUNT TO WHOM THE PLACING OR AN INVITATION TO SUBSCRIBE FOR PLACING SHARES IN THE MANNER CONTEMPLATED BY THIS ANNOUNCEMENT AND ANY COMMUNICATION OR CORRESPONDENCE IN CONNECTION THEREWITH IS PERMITTED BY THE LAWS OF THAT MEMBER STATE OR (II) IF THEY ARE NOT IN ANY SUCH MEMBER STATE BUT ARE ACTING FOR THE ACCOUNT OF SUCH PERSON THEN (I) APPLIES IN RESPECT OF EACH SUCH PURCHASER; (E) PERSONS IN OR OTHERWISE SUBJECT TO THE LAWS OF SWITZERLAND TO WHOM THE PLACING OR AN INVITATION TO SUBSCRIBE FOR PLACING SHARES IN THE MANNER CONTEMPLATED BY THIS ANNOUNCEMENT AND ANY COMMUNICATION OR CORRESPONDENCE THEREWITH IS PERMITTED BY THE LAWS OF SWITZERLAND AND WILL NOT RESULT IN AN 'PUBLIC OFFER' UNDER SWISS LAW; (F) PERSONS IN AUSTRALIA WHO ARE ABLE TO RECEIVE AN OFFER FOR SECURITIES WITHOUT DISCLOSURE UNDER PART 6D.2 OF THE AUSTRALIAN CORPORATIONS ACT 2001 (CTH) ("CORPORATIONS ACT") INCLUDING, WITHOUT LIMITATION, AS A "SOPHISTICATED INVESTOR" AS DEFINED IN SECTION 708(8) OF THE CORPORATIONS ACT OR A "PROFESSIONAL INVESTOR" AS DEFINED IN SECTION 708(11) OF THE CORPORATIONS ACT AND ARE NOT ACQUIRING THE PLACING SHARES WITH THE PURPOSE OF SELLING OR TRANSFERRING THEM OR GRANTING, ISSUING, OR TRANSFERRING INTERESTS IN, OR OPTIONS OVER, PLACING THE SHARES; (G) PERSONS IN CANADA WHO ARE ACCREDITED INVESTORS AS DEFINED IN THE CANADIAN NATIONAL INSTRUMENT 45-106 PROSPECTUS AND REGISTRATIONS EXEMPTIONS AND (H) PERSONS OUTSIDE
THE UNITED STATES, THE UNITED KINGDOM, SWITZERLAND OR OTHER MEMBER STATES OF THE EUROPEAN ECONOMIC AREA TO WHOM THE PLACING OR AN INVITATION TO SUBSCRIBE FOR THE SHARES IN THE MANNER CONTEMPLATED BY THIS ANNOUNCEMENT AND ANY COMMUNICATION OR CORRESPONDENCE THEREWITH IS PERMITTED BY THE LAWS OF THE JURISDICTION IN WHICH IT IS SITUATED OR FROM WHERE THE PLACEE SUBMITTED ITS BID TO SUBSCRIBE FOR PLACING SHARES AND IT IS A PERSON TO WHOM THE PLACING SHARES CAN LAWFULLY BE OFFERED AND ISSUED UNDER ALL APPLICABLE LAWS, WITHOUT THE NEED FOR ANY APPROVAL, REGISTRATION, FILING OR LODGEMENT OF ANY KIND, INCLUDING A PROSPECTUS OR OTHER DISCLOSURE DOCUMENT;
(ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS".)
THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN THIS APPENDIX DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
Persons who are invited to and who choose to participate in the Placing, by making an oral or written offer to subscribe for Placing Shares (the "Placees"), will be deemed to have read and understood this Announcement, including this Appendix, in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, acknowledgements, undertakings and agreements contained in this Appendix II. In particular, each such Placee represents, warrants and acknowledges that it is a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business.
This Announcement does not constitute an offer, and may not be used in connection with an offer to sell or issue or the solicitation of an offer to buy or subscribe for Placing Shares in any jurisdiction in which such offer or solicitation is or may be unauthorised or unlawful and any failure to comply with these restrictions may constitute a violation of applicable securities laws in such jurisdictions. This Announcement and the information contained herein is not for release, publication or distribution, directly or indirectly, to persons in the United States, Canada, Australia, Japan, the Republic of South Africa or in any other jurisdiction in which such release, publication or distribution is unauthorised or unlawful. Persons into whose possession this Announcement may come are required by the Company to inform themselves about and to observe any restrictions on transfer of this Announcement. No public offer of securities of the Company is being made in any jurisdiction.
In particular, the Placing Shares referred to in this Announcement have not been and will not be registered under the Securities Act or the laws of any state or other jurisdiction in the United States and may not be, directly or indirectly, offered, sold, pledged, resold, taken up, delivered or otherwise transferred in or into the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state laws.
The relevant clearances have not been, and nor will they be, obtained from the securities commission of any province or territory of Canada; no prospectus has been lodged and/or registered with the ASIC, or the CIPC or the Japanese Ministry of Finance; and the Placing Shares have not been, and nor will they be, registered under or offered in compliance with the securities laws of any state, province or territory of Australia, Canada, Japan or the Republic of South Africa. Accordingly, the Placing Shares may not (unless an exemption under the relevant securities laws is applicable) be offered, sold, resold, pledged, taken up, delivered or otherwise transferred directly or indirectly, in or into Australia, Canada or Japan or any other jurisdiction where to do so would be unauthorised or unlawful.
Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this Appendix or the Announcement of which it forms part should seek appropriate advice before taking any action.
1. Placing
1.1 Amara Mining plc (company number: 4822520) (the "Company"), intends to raise approximately GBP13.2 (approximately $20 million) through the issue of new ordinary shares of GBP0.01 each, subject to shareholder approval.
1.2 The Company has appointed Peel Hunt LLP ("Peel Hunt") and GMP Securities Europe LLP ("GMP") as Joint Bookrunners placing agents and brokers in respect of the Placing (together, the "Joint Bookrunners", and each, a "Joint Bookrunner").
1.3 The Joint Bookrunners will today commence an accelerated bookbuilding process in respect of the Placing (the "Bookbuild") to determine demand for participation in the Placing by Placees. This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing. No commissions will be paid to Placees or by Placees in respect of any Placing Shares.
1.4 The Joint Bookrunners and the Company shall be entitled to effect the Placing by such alternative method to the Bookbuild as they may, in their sole discretion, determine.
2. Bookbuild
Participation in, and principal terms of, the Placing:
2.1 Peel Hunt and GMP are acting as Joint Bookrunners and as agents of the Company.
2.2 By participating in the Bookbuild and Placing, you (and any person acting on your behalf including, for the avoidance of doubt, any nominee) acknowledge that Peel Hunt and GMP are not making any recommendation to you nor advising you, nor are you relying on them to advise, regarding the suitability or merits of your acquiring any Placing Shares or entering into any transaction connected with them. You acknowledge and agree that Peel Hunt and GMP are acting as the Joint Bookrunners in respect of the Placing, and are assisting the Company in identifying prospective purchasers for the Placing Shares and providing other assistance to the Company in respect of the Placing. Accordingly, you acknowledge and agree that they are not acting for, and that you do not expect them to have, and acknowledge and agree that they do not have, any duties or responsibilities towards you for providing protections afforded to their customers or clients or advising you with regard to your participation in the Placing and that you are not, and will not be, a customer or client of either Peel Hunt and GMP in relation to your participation in the Placing. Therefore neither of them will be responsible to you or to any other person for providing the protections afforded to their respective clients or for providing advice in relation to the transactions and arrangements described in this Announcement, nor do the contents or receipt of this Announcement constitute the provision of investment advice by either Peel Hunt and GMP.
2.3 Participation in the Placing will only be available to persons who may lawfully be and are invited to participate by the Joint Bookrunners. The Joint Bookrunners and their respective affiliates or their respective agents are entitled to enter bids as principal in the Bookbuild.
2.4 The Bookbuild will establish a single price in Pounds Sterling, payable to the Joint Bookrunners by all Placees whose bids are successful (the "Placing Price"). The Placing Price, the number of Placing Shares to be issued, and the aggregate proceeds to be raised through the Placing will be determined by the Joint Bookrunners in consultation with the Company following completion of the Bookbuild. The Placing Price will be announced on a Regulatory Information Service following the completion of the Bookbuild (the "Placing Results Announcement").
2.5 To bid in the Bookbuild, Placees should communicate their bid by telephone to their usual sales contact at the Joint Bookrunners (the "Relevant Bookrunner"). Each bid should state the number of Placing Shares for which the prospective Placee wishes to subscribe at the Placing Price which is ultimately established by the Joint Bookrunners in consultation with the Company, or at prices in Pounds Sterling up to a price limit in Pounds Sterling specified in its bid. Bids may be scaled down by the Joint Bookrunners on the basis referred to in paragraph 2.10 below.
2.6 The timing of the close of the Bookbuild process will be at the discretion of the Joint Bookrunners and the Company. The Company reserves the right (with the agreement of the Joint Bookrunners) to reduce or seek to increase the amount to be raised pursuant to the Placing, in its absolute discretion.
2.7 Each prospective Placee's allocation will be confirmed to the Placee orally by the Relevant Bookrunner following the close of the Placing, and (a) conditional trade confirmation(s) will be despatched as soon as possible thereafter. The Relevant Bookrunner's oral confirmation to such Placee will constitute an irrevocable legally binding commitment upon such person (who will at that point become a Placee) in favour of the Relevant Bookrunner and the Company, under which the Placee agrees to acquire the number of Placing Shares allocated to it at the Placing Price on the terms and conditions set out in this Appendix and in accordance with the Company's constitution.
2.8 Each prospective Placee's allocation and commitment will be evidenced by (a) conditional trade confirmation(s) issued to such Placee by the Relevant Bookrunner. The terms of this Appendix will be deemed to be incorporated in the trade confirmation(s).
2.9 The Placing Results Announcement shall detail the number of Placing Shares to be issued and the Placing Price in Pounds Sterling.
2.10 Subject to paragraphs 2.5 and 2.6 above, the Joint Bookrunners may choose to accept bids, either in whole or in part, on the basis of allocations determined at their discretion (in consultation with the Company) and may scale down any bids for this purpose on such basis as they may determine. The acceptance of bids shall be at the Joint Bookrunners' absolute discretion. The Joint Bookrunners may also, notwithstanding paragraphs 2.5 and 2.6 above, subject to the prior consent of the Company: (i) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time; and (ii) allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time. The Joint Bookrunners reserve the right not to accept bids or to accept bids in part rather than in whole.
2.11 A bid in the Bookbuild will be made on the terms and subject to the conditions in this Announcement and will be legally binding on the Placee on behalf of which it is made and, except with the Joint Bookrunners' consent, will not be capable of variation or revocation after the time at which it is submitted. Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to the Relevant Bookrunner, to pay it (or as it may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares such Placee has agreed to acquire. Each Placee's obligations under this paragraph will be owed to the Relevant Bookrunner.
2.12 Except as required by law or regulation, no press release or other announcement will be made by the Joint Bookrunners or the Company using the name of any Placee (or its agent), in its capacity as Placee (or agent), other than with such Placee's prior written consent.
2.13 Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be acquired pursuant to the Placing will be required to be made at the relevant time, on the basis explained below under "Registration and Settlement".
2.14 All obligations under the Bookbuild and Placing will be subject to fulfilment of the conditions referred to below under "Placing Agreement" and to the Placing not being terminated on the basis referred to below under "Placing Agreement".
2.15 By participating in the Bookbuild, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
2.16 To the fullest extent permissible by law and applicable rules of the FCA, none of the Joint Bookrunners nor any of their respective affiliates or agents shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise whether or not a recipient of these terms and conditions) in respect of the Placing. Each Placee acknowledges and agrees that the Company is responsible for the allotment of the Placing Shares to the Placees and the Joint Bookrunners shall have no liability to the Placees for the failure of the Company to fulfil those obligations. In particular, neither of the Joint Bookrunners nor any of their respective affiliates or agents shall have any liability (including to the extent permissible by law, any fiduciary duties) in respect of the conduct of the Bookbuild process or of any alternative method of effecting the Placing as the Joint Bookrunners and the Company may agree.
2.17 In making an investment decision, Placees must rely on their own examination of the Company and its prospects and the terms of the Placing, including the merits and risks involved in investing in the Placing Shares.
2.18 Settlement will occur on a date to be advised but expected to be on or around 10 February 2015 ("Closing Date").
2.19 If the Placee owns Existing Ordinary Shares in the capital of the Company, it hereby irrevocably undertakes to vote them in favour of the Resolutions. To the extent the Placee is interested in any of the Existing Ordinary Shares in the capital of the Company but such existing shares are not registered in the Placee's name, the Placee irrevocably undertakes that it will procure that the registered holders take all such action as shall be necessary to vote those shares in favour of the Resolutions.
3. Placing Shares and Quotation
3.1 The Placing Shares will be issued fully paid and will rank equally, from the date of issue, in all respects with the Company's existing issued ordinary shares, including the right to receive all dividends and other distributions declared, made or paid in respect of such ordinary shares after the date of issue of the Placing Shares.
3.2 Application will be made to the London Stock Exchange plc for admission to trading of the Placing Shares on AIM ("Admission"). It is anticipated that Admission will become effective on or around 10 February 2015 and that dealings in the Placing Shares will commence at that time.
4. Placing Agreement
On 20 January 2015, the Company and each of the Joint Bookrunners entered into a placing agreement in connection with the Placing (the "Placing Agreement"). Pursuant to the Placing Agreement, each of the Joint Bookrunners has agreed to use their respective reasonable endeavours to place the Placing Shares with prospective purchasers.
The Joint Bookrunners' obligations under the Placing Agreement in respect of the Placing Shares are conditional, inter alia, on:
(a) the agreement between the Joint Bookrunners and the Company of the Placing Price and the number of Placing Shares to be issued as established in the Bookbuild process;
(b) shareholder approval of the resolutions necessary to issue the Placing Shares pursuant to the Placing ("Resolutions");
(c) none of the warranties contained in the Placing Agreement being untrue, inaccurate or misleading as at the date of the Placing Agreement and the date of Admission as though they had been given and made on such dates (by reference to the facts and circumstances existing at such dates);
(d) the Company allotting, subject only to Admission, the Placing Shares in accordance with the Placing Agreement;
(e) Admission taking place not later than 8.00 a.m. on 10 February 2015 or such later date as the Company and the Joint Bookrunners may otherwise agree but not being later than 8.00 a.m. on 21 February 2015; and
(f) in the reasonable opinion of the Joint Bookrunners there having been since the date of the Placing Agreement no material adverse change or development in the financial or trading position or results of the Company (or of its subsidiaries taken as a whole).
If: (i) any of the conditions contained in the Placing Agreement in relation to the Placing Shares are not fulfilled or waived by the Joint Bookrunners by the respective time or date where specified (or such later time or date as the Company and the Joint Bookrunners may agree); (ii) any of such conditions becomes incapable of being fulfilled; or (iii) the Placing Agreement is terminated in the circumstances specified below, the Placing in relation to the Placing Shares will lapse and the Placee's rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof.
The Joint Bookrunners may, at their absolute discretion and upon such terms as they think fit, waive, or extend the period for, compliance by the Company with the whole or any part of any of the Company's obligations in relation to the conditions in the Placing Agreement save that the conditions relating to the allotment and issue of the Placing Shares (subject only to Admission) and shareholder approval may not be waived. Any such extension or waiver will not affect Placees' rights and obligations under the terms and conditions set out in this Appendix.
Neither of the Joint Bookrunners nor the Company shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of the Joint Bookrunners.
Each of the Joint Bookrunners is entitled, at any time before Admission, to terminate the Placing Agreement by giving notice to the Company in certain circumstances, including, inter alia, a breach of the warranties given to the Joint Bookrunners in the Placing Agreement, the failure of the Company to comply with obligations under the Placing Agreement or the occurrence of a material adverse change which, in the reasonable opinion of a Joint Bookrunner, is likely to prejudice the success of the Placing. Following Admission, the Placing Agreement is not capable of rescission or termination.
If any of the obligations of the Joint Bookrunners with respect to the Placing are terminated in the manner contemplated above, the rights and obligations of each Placee shall cease and terminate at such time and no claim can be made by any Placee in respect thereof. The rights and obligations of the Placees shall terminate only in the circumstances described in these terms and conditions and will not be subject to termination by the Placee or any prospective Placee at any time or in any circumstances. By participating in the Placing, Placees agree that the exercise by a Joint Bookrunner of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of that Joint Bookrunner, and that it need not make any reference to Placees and that it shall have no liability to Placees whatsoever in connection with any such exercise.
5. Relationship of the Joint Bookrunners
5.1 The obligations of each Joint Bookrunner in connection with the Placing (including any payment obligation) are several, and not joint nor joint and several. A right of a Joint Bookrunner in connection with the Placing (including any rights under the Placing Agreement) is held by that Joint Bookrunner severally and each Joint Bookrunner may exercise its rights, powers and benefits in connection with the Placing separately and individually.
5.2 A Joint Bookrunner will not be responsible for the performance obligations of the other Joint Bookrunner and will not be liable for any claims, damages or liabilities arising out of the actions taken, omissions of or advice given by the other Joint Bookrunner. Any breach, non-performance or default by a Joint Bookrunner will not constitute a breach, non-performance or default of the other.
5.3 Nothing contained or implied hereby or by acceptance of the Placing constitutes a Joint Bookrunner acting as the partner, agent or representative of the other Joint Bookrunner for any purpose or creates any partnership, agency or trust between the Joint Bookrunners, and no Joint Bookrunner has any authority to bind another Joint Bookrunner in any way.
5.4 Neither of the Joint Bookrunners will be liable for any loss, damage or claim arising out of the actions taken or advice given by the other Joint Bookrunner. In addition, the rights of a Joint Bookrunner and the Beneficiaries (as defined below) in respect of that Joint Bookrunner under the representations, warranties, acknowledgements and undertakings set out below will in no way be affected by the actions taken or alleged to have been taken or advice given or alleged to have been given by the other Joint Bookrunner or its Beneficiaries.
6. Offer personal
The offering of Placing Shares and the agreement arising from acceptance of the Placing is personal to each Placee and does not constitute an offering to any other person or to the public. A Placee may not assign, transfer, or in any other manner, deal with its rights or obligations under the agreement arising from the acceptance of the Placing, without the prior written agreement of the Joint Bookrunners in accordance with all relevant legal requirements.
7. No Prospectus
The Placing Shares are being offered to a limited number of specifically invited persons only and will not be offered in such a way as to require a prospectus in the United Kingdom or in any other jurisdiction. No offering or admission document or prospectus has been or will be submitted to be approved by the FCA, the London Stock Exchange plc in relation to the Placing and Placees' commitments will be made solely on the basis of the information contained in this Announcement (including this Appendix II).
No offer document or prospectus has been or will be delivered to the Financial Conduct Authority ("FCA") in relation to the Placing, and a Placee's commitments will be made solely on the basis of the information contained in the announcement released by the Company today which this Appendix forms part of (the "Announcement").
Each Placee, by making an offer to subscribe for Placing Shares, agrees that the content of this Announcement (including this Appendix) is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company or the Joint Bookrunners or any other person and none of the Company or the Joint Bookrunners nor any other person will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which Placees may have obtained or received. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
8. Registration and Settlement
Settlement of transactions in the Placing Shares will, unless otherwise agreed, take place on a delivery versus payment basis within the CREST system administered by Euroclear UK and Ireland Limited ("CREST").
The Company will procure the delivery of the Placing Shares to CREST accounts operated by the respective Joint Bookrunner for the Company and the Joint Bookrunners will enter their respective delivery (DEL) instructions into the CREST system. The input to CREST by each Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
The Company reserves the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to any Placee in any form it requires if, in the Relevant Bookrunner's opinion, delivery or settlement is not possible or practicable within CREST or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild for the Placing, each Placee allocated Placing Shares in the Placing may be sent a conditional trade confirmation stating the number of Placing Shares, the Placing Price and the subscription amount payable to be allocated to it and will be required to provide the Joint Bookrunners with funds sufficient to purchase such securities prior to the Closing Date.
Each Placee is deemed to agree that, if it does not comply with these obligations, the Company may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for the Company's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
Subject to the passing of the Resolutions, it is expected that settlement will take place on or about 10 February 2015 in CREST on a T+2 basis in accordance with the instructions set out in the conditional trade confirmation. Settlement will be either through GMP against CREST ID 116 or through Peel Hunt against CREST ID 871.
The Company reserves the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to any Placee in any form it requires if, in the Joint Bookrunners' or the Company's opinion, delivery or settlement is not possible or practicable within CREST or would not be consistent with the regulatory requirements of the Placee's jurisdiction.
Following the close of the Bookbuild for the Placing, each Placee allocated Placing Shares in the Placing will be sent a conditional trade confirmation(s) stating the number of Placing Shares to be allocated to it at the Placing Price and settlement instructions.
Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with the applicable registration and settlement procedures, including if applicable, CREST rules and regulations and settlement instructions that it has in place with the respective Joint Bookrunner.
If Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the conditional trade confirmation is copied and delivered immediately to the relevant person within that organisation. Each Placee shall ensure that, insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or nominee, such person shall not be a person who is or may be liable to any UK stamp duty or stamp duty reserve tax or securities transfer tax.
Interest is chargeable daily on payments to the extent that value is received after the due date at the rate per annum of 4 percentage points above the Barclays Bank plc base rate.
Trade date: 6 February 2015 Settlement date: 10 February 2015 (Electronic) ISIN code for the GB00B04M1L91 Placing Shares: 9. Representations and Warranties
By participating in the Bookbuild and Placing each Placee (and each person acting on its behalf) represents, warrants, acknowledges and undertakes for the benefit of the Company, each of the Joint Bookrunners and the respective officers, employees and advisers of the Company and of each of the Joint Bookrunners, and any person acting on behalf of any of them (together the "Beneficiaries") as follows:
(a) if it is a Placee in the United Kingdom it:
(i) is a "qualified investor" for the purposes of section 86(7) of FSMA who is purchasing the Placing Shares as principal for its own account and not for others, except in circumstances, to section 86(2) of FSMA applies; and
(ii) is also a person falling within one or more of the categories of persons referred to in article 19 (investment professionals) or 49 (high net worth companies, etc) of the Financial Services and Markets Act 2000 (Financial Promotions) Order 2005 or is a person to whom the Placing may otherwise be made or to whom the Placing Shares may otherwise be directed without an approved prospectus having been made available to the public in the UK before the Placing Shares are offered and without making an unlawful financial promotion; and
(iii) understands, recognises and acknowledges that no prospectus has been or will be approved in connection with the Placing by the FCA in the United Kingdom under section 87A of FSMA; or
(iv) if it is not in the United Kingdom but is acting for the account of a purchaser in the United Kingdom, that each of subparagraphs (i), (ii) and (iii) applies in respect of each such purchaser;
(b) if it is a Placee in or otherwise subject to the laws of a member state of the European Economic Area (other than, for the avoidance of doubt, the UK), (i) it is a "qualified investor" (as defined in Article 2(1)(e) of the Prospectus Directive 2003/71 EC, as amended by the Prospective Directive 2010/73/EU) acting as a principal for its own account to whom an invitation or Placing to subscribe for Placing Shares in the manner contemplated by this agreement and any communication or correspondence in connection therewith is permitted by the laws of that member state or (ii) if it is not in any such member state but are acting for the account of such person then (i) applies in respect of each such purchaser;
(c) if it is a Placee in or otherwise subject to the laws of Switzerland it is a person to whom the Placing or an invitation to subscribe for the Placing Shares in the manner contemplated by this Appendix and any communication or correspondence therewith is permitted by the laws of Switzerland and will not result in an 'public offer' under Swiss law;
(d) if the Placee is receiving the offer to subscribe for Placing Shares under the Placing in Australia, it is a person who is able to receive an offer for securities without disclosure under Part 6D.2 of the Australian Corporations Act 2001 (Cth) ("Corporations Act") including, without limitation, as a "sophisticated investor" as defined in section 708(8) of the Corporations Act or a "professional investor" as defined in section 708(11) of the Corporations Act and it is not acquiring the Placing Shares with the purpose of selling or transferring them or granting, issuing, or transferring interests in, or options over, the Placing Shares. If the Placee is a "sophisticated investor", the Placee will provide to the Joint Bookrunners a certified copy of a certificate from a qualified accountant (as defined in the Corporations Act) dated no more than 6 months before the date of this Appendix confirming the Placee's status as a sophisticated investor in accordance with section 708(8) of the Corporations Act. In addition, the Placee acknowledges that the Company has not issued a disclosure document (as defined in the Corporations Act) for the Placing Shares, the Placing Shares and the Announcement have not been, nor will they be, registered with the Australian Securities and Investments Commission and that the Placing Shares must not be offered for resale within Australia within 12 months of them being issued unless any such resale offer does not require disclosure under Chapter 6D of the Corporations Act. The Placee also acknowledges that the Company has made the following statement:
"No financial product advice is provided in the documentation related to the Placing and nothing in the documentation should be taken to constitute a recommendation or statement of opinion that is intended to influence the Placee in making a decision to participate in the Placing. Any advice contained in the documentation should be seen as general advice only and does not take into account the objectives, financial situation or needs of any particular person. Neither the Company nor any of its related bodies corporate is licensed to provide financial product advice and before acting on the information contained in the documentation, or making a decision to participate in the Placing, the Placee should consider seeking professional financial product advice from an independent person licensed by the Australian Securities and Investments Commission to give such advice. Neither a prospectus, a Product Disclosure Statement nor any other form of disclosure document has been or will be issued in relation to the Placing. No cooling-off regime applies to the Placing Shares offered to the Placee pursuant to this document or any accompanying documentation.";
(e) if it is a Placee in or otherwise subject to the laws of persons in Canada it is a person who is an "accredited investor" as defined in the Canadian National Instrument 45-106 Prospectus and Registration Exemptions;
(f) if it is in a jurisdiction outside the United States, the United Kingdom, Switzerland or other member states of the European Economic Area, it is a person to whom the Placing or an invitation to subscribe for the Placing Shares in the manner contemplated by this Appendix and any communication or correspondence therewith is permitted by the laws of the jurisdiction in which it is situated or from where the Placee submitted its bid to subscribe for Placing Shares and it is a person to whom the Placing Shares can lawfully be offered and issued under all applicable laws, without the need for any approval, registration, filing or lodgement of any kind, including a prospectus or other disclosure document;
(g) if it is not in the United States, nor a U.S. Person, (as defined in Regulation S under the U.S. Securities Act of 1933, as amended (the "U.S. Securities Act")) nor acting for the account or benefit of a person in the United States or a U.S. Person, and it is acquiring the Placing Shares in an offshore transaction in accordance with Regulation S under the U.S. Securities Act
(h) if it is in the United States or a U.S. Person, it meets the requirements of (i) qualified institutional buyers, as defined in Rule 144A under the U.S. Securities Act or (ii) accredited investors (as defined in Rule 501 of Regulation D under the U.S. Securities Act);
(i) it understands that the Placing and sale to it of the Placing Shares has not been and will not be registered under the U.S. Securities Act the laws of any state of the United States; Therefore, it agrees that it will not offer, sell or pledge any Placing Shares in the United States unless and until the Shares are registered under the U.S. Securities Act (which it acknowledges the Company has no obligation to do) or unless the Placing Shares are offered, sold or pledged in a transaction exempt from, or not subject to, the registration requirements of the U.S. Securities Act and the laws of any state of the United States;
(j) the Placee acknowledges that it has not acquired the Placing Shares as a result of any general solicitation or general advertising (as these terms are used in Regulation D under the U.S. Securities Act), including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media, or broadcast over radio, Internet or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(k) the Placee understands that if it is in the United States or a U.S. person and it decides to offer, sell or otherwise transfer any of the Placing Shares, such securities may be offered, sold or otherwise transferred only (i) to the Company, (ii) pursuant to an effective registration statement that covers resales of the securities, (iii) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, or (iv) within the United States in a transaction that does not require registration under the Securities Act (including, without limitation, pursuant to Rule 144 or Rule 144A) and in any case in accordance with any applicable securities laws of any state of the United States, and, with respect to clauses (iii) and (iv), the Placee has, prior to such offer, sale or transfer, furnished to the Company an opinion of counsel or other evidence of exemption, in either case reasonably satisfactory to the Company;
(l) if the Placee is in the United States or a U.S. person and holds the Placing Shares in certificated form, the Placee understands and acknowledges that upon the original issuance thereof, and until such time as the same is no longer required under applicable requirements of the U.S. Securities Act or applicable state securities laws, certificates representing, documents or notation constituting the Placing Shares and all certificates or documents issued in exchange therefor or in substitution thereof, shall bear a legend substantially in the following form:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THESE SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THAT COVERS RESALES OF SECURITIES, (C) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT (INCLUDING WITHOUT LIMITATION RULE 144 OR 144A THEREUNDER) OR ANY APPLICABLE STATE SECURITIES LAWS, AND, WITH RESPECT TO CLAUSES (C) AND (D), THE HOLDER HAS, PRIOR TO SUCH OFFER, SALE OR TRANSFER, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY."
If Placing Shares are being sold under Rule 904 of Regulation S under the U.S. Securities Act, and provided that the Company is a "foreign issuer" within the meaning of Regulation S at the time of sale, the legend may be removed by providing a declaration to Capita Registrars, the Company's registrar and transfer agent (including any successor transfer agent, the "Transfer Agent"), as the Company may prescribe from time to time and, if required by Transfer Agent, subject to applicable law, the Company will use its reasonable endeavours to obtain an opinion or memorandum of U.S. counsel (as required by the Transfer Agent), addressed to the Transfer Agent permitting removal of resale restrictions for resales of Placing Shares by investors in the United States through the facilities of the London Stock Exchange in reliance upon Rule 904 of Regulation S under the Securities Act;
(m) the Placee consents to the Company making a notation on its records or giving instructions to any registrar and transfer agent of the Placing Shares in order to implement the restrictions on transfer set forth and described above;
(n) if required by applicable securities laws or as otherwise reasonably requested by the Company, the Placee will execute, deliver and file and otherwise assist the Company in filing reports, questionnaires, undertakings and other documents with respect to the issue of the Placing Shares;
(o) the Placee has such knowledge and experience in financial, business and tax matters as to be capable of evaluating the merits and risks of its investment in the Placing Shares and it is able to bear the economic risks and complete loss of such investment in the Placing Shares;
(p) the Placee has not received or requested nor does it have any need to receive any offering memorandum or any other document describing the business and affairs of the Company in order to assist it in making an investment decision to subscribe for the Placing Shares;
(q) the Placee understands and agrees that there may be material tax consequences to the Placee of an acquisition or disposition of any of the Placing Shares. Neither the Company nor either of the Joint Bookrunners gives any opinion or makes any representation with respect to the tax consequences to the Placee under United States, state, local or foreign tax law of the undersigned's acquisition or disposition of such securities. In particular, no determination has been made whether the Company will be a "passive foreign investment company" ("PFIC") within the meaning of Section 1291 of the United States Internal Revenue Code;
(r) it is purchasing the Placing Shares for its account or for the account of one or more persons for investment purposes only and not with the purpose of, or with a view to, the resale, transfer or distribution or granting, issuing or transferring of interests in, or options over, the Placing Shares and, in particular, neither the Placee nor any other person for whose account it is purchasing the Placing Shares has any intention to distribute either directly or indirectly any of the Placing Shares in the United States;
(s) it has such knowledge and experience in financial and business matters and expertise in assessing credit and all other relevant risks that it is capable of evaluating independently, and has evaluated independently and conducted an in-depth detailed analysis on, the merits and risks of a purchase of the Placing Shares for itself and each other person, if any, for whose account it is acquiring any Placing Shares, and it has determined that the Placing Shares are a suitable investment for itself and each other person, if any, for whose account it is acquiring any Placing Shares, both in the nature and the number of the Placing Shares being acquired;
(t) if applicable, it is, or any beneficial purchaser for whom it is contracting is, acquiring the Placing Shares pursuant to and in compliance with an exemption from the prospectus requirements of securities laws of the jurisdiction of residence and will provide the Company and the Joint Bookrunners, on request, whether before or after the Closing Date, with evidence of such compliance;
(u) it has had access to all information that it believes is necessary or appropriate in connection with, and for an adequate time prior to, its purchase of the Placing Shares. It acknowledges and agrees that it will not hold the Joint Bookrunners responsible for any misstatements in, or omissions from, any publicly available information concerning the Company;
(v) it has made and relied entirely upon its own assessment of the Company, and has conducted its own independent investigation with respect to the Placing Shares and the Company;
(w) it shall obtain its own advice regarding the tax consequences in any jurisdiction of purchasing, owning or disposing of any Placing Shares;
(x) it has not relied on any investigation that any Beneficiary may have conducted with respect to the Placing Shares or the Company. No Beneficiary has made any representation to it, express or implied, with respect to the Placing Shares or the Company;
(y) it acknowledges that the Placing does not constitute a securities recommendation or advice in relation to any securities, and that no securities recommendation or advice has been made or given to you by any Beneficiary in relation to the Placing;
(z) it acknowledges that an investment in the Placing Shares involves a degree of risk;
(aa) except to the extent that liability cannot by law be excluded, it acknowledges that none of the Beneficiaries accept any responsibility in relation to the Placing or for the accuracy or completeness of any information given to it in connection with the Placing;
(bb) it acknowledges and agrees that it will accept the decisions and actions of the Joint Bookrunners in respect of the Placing and the acceptance of any Placing of Placing Shares does not oblige the Joint Bookrunners to consult with it as to any matter or qualify the exercise or non-exercise of rights arising under or in relation to the Placing;
(cc) it has been independently advised as to any resale restrictions under applicable securities laws in its own jurisdiction;
(dd) it acknowledges and agrees that if a Joint Bookrunner takes title to the Placing Shares it does so only as agent for Placee for the purposes of effecting settlement and it agrees to release such Joint Bookrunner from any liability incurred by it in acting in such capacity (whether arising out of any act or omission by the Company in relation to the Placing or to the Placing Shares or otherwise);
(ee) if it is acquiring any Placing Shares for an account of one or more persons, it has full power to make the acknowledgements, representations, warranties and agreements hereunder on behalf of each such person and it will take reasonable steps to ensure that each such person will comply with its obligations hereunder;
(ff) it acknowledges that the Beneficiaries will rely upon the truth and accuracy of the foregoing acknowledgements, representations, warranties and agreements in conducting and undertaking the Placing;
(gg) it has read this Announcement, including this Appendix, in its entirety;
(hh) the exercise by the Joint Bookrunners of any right of termination or any right of waiver exercisable by them contained in the Placing Agreement, without limitation, the right to terminate the Placing Agreement, is within their absolute discretion and no Joint Bookrunner will have any liability to any Placee whatsoever in connection with any decision to exercise or not exercise any such rights;
(ii) if (i) any of the conditions in the Placing Agreement are not satisfied (or, where relevant, waived), or (ii) the Placing Agreement is terminated or does not otherwise become unconditional in all respects prior to Admission, Sthe Placing will lapse and its rights shall cease and determine at such time and no claim shall be made by any Placee in respect thereof;
(jj) no offer document or prospectus has been, or will be, prepared in connection with the Placing and it represents and warrants that it has not received a prospectus or other offer document in connection therewith;
(kk) the Ordinary Shares are (and the Placing Shares issued pursuant to the Placing will be) admitted to trading on AIM, and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of AIM and that it is able to obtain or access such information without undue difficulty, and is able to obtain access to such information or comparable information concerning any other AIM quoted company, without undue difficulty;
(ll) none of the Joint Bookrunners or the Company nor any of their affiliates nor any person acting on behalf of any of them has provided, and will not provide it, with any material regarding the Placing Shares or the Company or any other person other than this Announcement; nor has it requested either of the Joint Bookrunners or the Company nor any of their affiliates or any person acting on behalf of any of them to provide it with any such information;
(mm) the content of this Announcement is exclusively the responsibility of the Company and none of the Joint Bookrunners nor any person acting on their behalf has or shall have any liability for any information, representation or statement contained in this Announcement or any information previously published by or on behalf of the Company (except for any information or statements relating solely to the Joint Bookrunners and furnished by the Joint Bookrunners specifically for use in such documents) and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to subscribe for the Placing Shares is contained in this Announcement and any information previously published by the Company, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by either of the Joint Bookrunners or the Company and none of the Joint Bookrunners or the Company will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement. Each Placee further acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing;
(nn) represents and warrants that it has neither received nor relied on any confidential price sensitive information concerning the Company or the Placing Shares in accepting an invitation to participate in the Placing;
(oo) acknowledges that the Ordinary Shares are listed, admitted to trading on AIM and the Company is therefore required to publish certain business and financial information in accordance with the rules of such exchanges (collectively, the "Exchange Information"), which includes a description of the nature of the Company's business and the Company's most recent resource statements, financial statements, and similar statements for preceding financial years, and that it is able to obtain or access the Exchange Information without undue difficulty;
(pp) acknowledges that neither the Joint Bookrunners nor any person acting on their behalf nor any of their affiliates nor its or their respective directors, officers, employees, agents, partners or professional advisers has or shall have any liability for any direct, indirect or consequential loss or damage suffered by any person as a result of relying on any statement contained in the Exchange Information, any other information made available by or on behalf of the Company or made publicly available by the Company on its website, by press release, by public filing or otherwise or any other information, provided that nothing in this paragraph excludes the liability of any person for fraud made by that person;
(qq) unless otherwise specifically agreed with the Joint Bookrunners, acknowledges that it is not, and at the time the Placing Shares are acquired will not, be a resident of the United States, Australia, Canada or Japan, and that the Placing Shares have not been and will not be registered under the securities legislation of the United States, Australia, Canada or Japan and, subject to certain exceptions, may not be offered, sold, resold, pledged, taken up, renounced or delivered or transferred, directly or indirectly, in or into those jurisdictions;
(rr) unless otherwise specifically agreed with the Joint Bookrunners, represents and warrants that it is, or at the time the Placing Shares are acquired that it will be, the beneficial owner of such Placing Shares, or that the beneficial owner of such Placing Shares is not a resident of the United States, Australia, Canada, Japan or the Republic of South Africa;
(ss) acknowledges that the Placing Shares have not been and will not be registered under the securities legislation of the United States, Australia, Canada, Japan or the Republic of South Africa and, subject to certain exceptions, may not be offered, sold, taken up, renounced or delivered or transferred, directly or indirectly, in or into those jurisdictions;
(tt) neither it, nor the person specified by it for registration as a holder of Placing Shares is, or is acting as nominee or agent for, and that the Placing Shares will not be allotted to, a person who is or may be liable to stamp duty or stamp duty reserve tax under any of sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary receipts and clearance services);
(uu) if in the United Kingdom, it has complied with its obligations in connection with the Criminal Justice Act 1993, money laundering and terrorist financing under the Anti Terrorism Crime and Security Act 2001, the Proceeds of Crime Act 2002, the Terrorism Act 2003, the Terrorism Act 2006, the Money Laundering Regulations 2007 and Part VIII of the Financial Services and Markets Act 2000 (the "Regulations") and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations and has obtained all governmental and other consents (if any) which may be required for the purpose of, or as a consequence of, such purchase, and it will provide promptly to the Joint Bookrunners such evidence, if any, as to the identity or location or legal status of any person which any Joint Bookrunner may request from it in connection with the Placing (for the purpose of complying with such regulations or ascertaining the nationality of any person or the jurisdiction(s) to which any person is subject or otherwise) in the form and manner requested by the Joint Bookrunners on the basis that any failure by it to do so may result in the number of Placing Shares that are to be purchased by it or at its direction pursuant to the Placing being reduced to such number, or to nil, as the Joint Bookrunners may decide at either of their sole discretion;
(vv) if a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, represents and warrants that the Placing Shares purchased by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a member state of the European Economic Area which has implemented the Prospectus Directive other than Qualified Investors, or in circumstances in which the prior consent of the Joint Bookrunners has been given to the offer or resale;
(ww) if within a reasonable time after a request for verification of identity the Joint Bookrunners have not received such satisfactory evidence, the Joint Bookrunners may, in their absolute discretion, reject an application for Placing Shares in which event all funds delivered by such Placee to the Joint Bookrunners (if any) will be returned without interest to the account of the drawee bank from which they were originally debited;
(xx) represents and warrants that it has not offered or sold and will not offer or sell any Placing Shares to persons in the European Economic Area prior to the relevant AIM Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any member state of the European Economic Area within the meaning of the Prospectus Directive;
(yy) represents and warrants that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) relating to the Placing Shares in circumstances in which section 21(1) of the FSMA does not require approval of the communication by an authorised person;
(zz) it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;
(aaa) it will (or will procure that its nominee will), if applicable, make notification to the Company of the interest in the Company's ordinary shares in accordance with Chapter 5 of the Disclosure and Transparency Rules;
(bbb) it and any person acting on its behalf is entitled to subscribe for and purchase the Placing Shares under the laws of all relevant jurisdictions which would apply to it, and that it and any person acting on its behalf is in compliance with applicable laws in the jurisdiction of its residence, the residence of the Company, or otherwise;
(ccc) it (and any person acting on its behalf) will make or procure payment for the Placing Shares allocated to it in accordance with this Announcement on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other subscribers or sold as the Joint Bookrunners may in their absolute discretion determine and without liability to such Placee and it will remain liable for any shortfall below the net proceeds of such sale and the placing proceeds of such Placing Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties due pursuant to or referred to in these terms and conditions) which may arise upon the placing or sale of such Placee's Placing Shares on its behalf;
(ddd) acknowledges that none of the Joint Bookrunners, nor any of their respective affiliates, nor their respective agents nor any person acting on behalf of any of them, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of either of the Joint Bookrunners and that none of the Joint Bookrunners have any duties or responsibilities to it for providing the protections afforded to their respective clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, acknowledgements, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
(eee) the person whom it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be, and none of the Joint Bookrunners nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax resulting from a failure to observe this requirement. Each Placee and any person acting on behalf of such Placee agrees to participate in the Placing and it agrees to indemnify the Company and the Joint Bookrunners in respect of the same on the basis that the Placing Shares will be allotted to the account of the Joint Bookrunners who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions;
(fff) the Company and the Joint Bookrunners and their respective affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and undertakings which are given to each of the Joint Bookrunners on their own behalf and on behalf of the Company and are irrevocable;
(ggg) it will indemnify and hold the Company and the Joint Bookrunners and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Announcement and further agrees that the provisions of this Appendix shall survive after completion of the Placing;
(hhh) its commitment to subscribe for Placing Shares on the terms set out herein will continue notwithstanding any amendment that may in future be made to the terms of the Placing and the Placee will have no right to be consulted or require that its consent be obtained with respect to the Company's conduct of the Placing. The foregoing representations, warranties and confirmations are given for the benefit of the Company and the Joint Bookrunners. The agreement to settle a Placee's subscription (and/or the subscription of a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to the subscription by it and/or such person direct from the Company for the Placing Shares in question. Such agreement assumes, and is based on the warranty above from each Placee, that neither it, nor the person specified by it for registration as holder, of Placing Shares is, or is acting as nominee or agent for, and that the Placing Shares will not be allotted to, a person who is or may be liable to stamp duty or stamp duty reserve tax under any of sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary receipts and clearance services). If there are any such arrangements, or the settlement relates to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be payable. In that event the Placee agrees that it shall be responsible for such stamp duty or stamp duty reserve tax, and neither the Company nor the Joint Bookrunners shall be responsible for such stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and notify the Joint Bookrunners accordingly;
(iii) no action has been or will be taken by any of the Company, the Joint Bookrunners or any person acting on behalf of the Company or the Joint Bookrunners that would, or is intended to, permit a public offering of the Placing Shares in any country or jurisdiction where any such action for that purpose is required;
(yy) it will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the United Kingdom by them or any other person on the subscription by them of any Placing Shares or the agreement by them to subscribe for any Placing Shares;
(jjj) the Joint Bookrunners or any of their affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares;
(kkk) when a Placee or person acting on behalf of the Placee is dealing with the Joint Bookrunners, any money held in an account with either of the Joint Bookrunners on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FCA made under FSMA;
(lll) it acknowledges that the money will not be subject to the protections conferred by the client money rules and as a consequence, this money will not be segregated from the relevant Joint Bookrunners' money in accordance with the client money rules and will be used by the relevant Joint Bookrunner in the course of its own business; and the Placee will rank only as a general creditor of the Joint Bookrunner;
(mmm) it acknowledges that all times and dates in this Announcement may be subject to amendment and the Joint Bookrunners shall notify the Placees and any person acting on behalf of the Placees of any changes;
(nnn) that past performance is no guide to future performance and persons needing advice should consult an independent financial adviser;
(ooo) all obligations entered into by the Placee pursuant hereto with the Joint Bookrunners are entered into with them as agent for the Company and are therefore enforceable directly by the Company;
(ppp) if a company, it is a valid and subsisting company and has all the necessary corporate capacity and authority to execute its obligations in connection with the Placing participation;
(qqq) it irrevocably appoints any director of either of the Joint Bookrunners as its agent for the purposes of executing and delivering to the Company's and/or its registrars any documents on its behalf necessary to enable it to be registered as the holder of any of the Placing Shares offered to it; and
(rrr) time shall be of the essence as regards obligations pursuant to this Appendix. 10. Entire Agreement
The terms set out in this Appendix and the allocation of Placing Shares (including the subscription amount payable) as confirmed to a Placee, constitute the entire agreement to the terms of the Placing and a Placee's participation in the Placing to the exclusion of prior representations, understandings and agreements between them. Any variation of such terms must be in writing.
11. Governing Law and Jurisdiction
The agreement arising out of acceptance of the Placing and any dispute or claim arising out of or in connection with the Placing or formation thereof (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England. Each Placee irrevocably agrees to submit to the exclusive jurisdiction of the courts of England to settle any claim or dispute that arises out of or in connection with the agreement arising out of acceptance of the Placing or its subject matter or formation (including non-contractual disputes or claims).
This information is provided by RNS
The company news service from the London Stock Exchange
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